Introduction
Which of the contesting parties should
provide evidence in a judicial proceeding is determined on the basis of some judicial
principles that are laid down in the Indian Evidence Act. This write up is exclusively about such principles
included in Part III of Indian Evidence Act.
Who holds the burden of providing evidence?
First of all, the burden of providing
evidence rests on the person who asserts anything in the court and not on who
denies it. This burden remains constant and never shifts at all.
Then the burden of providing evidence
in a suit or proceeding lies on the person, who would fail if no evidence is
given on both sides. This burden shifts from one side to another in the course
of the proceedings or at every instance of providing evidence.
Then the burden of providing evidence
lies on the person who wants the court to believe something unless law has
prescribed something different. In order to make some evidence provided by
someone admissible, it is quite necessary to prove beforehand that he is
entitled to give that evidence.
The burden of proving an exceptional
circumstance in an offence, such as unsoundness of mind of the accused or grave
and sudden provocation, provided for in the Indian Penal Code or any other penal
law rests upon the accused.
Whenever any fact is within the
knowledge of a person, the burden of proving the fact rests upon that person.
If a person is shown to be alive
within 30 years, the burden of proving that he is not alive is on the person
who affirms it.
On the other hand, if a person has not
been heard of for seven years by those who would naturally have heard of him,
the burden of proving that he is alive is on the person who affirms that he is
alive.
Some judicial presumptions
If some relationship like that of
partners in a partnership, landlord and tenant in a tenancy relation, principal
and agent in a contractual relation etc is in question in a proceeding, then there
will be a judicial presumption that such a relationship continues to exist till
the contrary is proved by the person who affirms it.
When a person is in possession of a
property, the burden of proving that he is not the owner of it is on the person
who affirms that the person is not its owner.
The good faith in a transaction, such
as a sale, between parties has to be proved by the person who stands to the
other in a position of active confidence in the bonafide nature of the transaction.
If a child is born within 280 days
after the divorce of the spouses, it is a conclusive proof that it is a
legitimate child. The presumption will not hold good if it can be proved that
the husband and wife had no access to each other during those days.
In the case of some offences like
terrorists attack, abetment of suicide by a married woman, dowry death of a
woman, and absence of consent in a rape case, coming under sections 111A, 113A,
113B & 114A of the Indian Evidence Act respectively, the burden of proving lies
squarely on the accused.
Estoppel not acceptable
Estoppel means disallowing to say
(taking a stand about) one thing at a time and the opposite of it at another
time.
In providing proof, a party in a
judicial proceeding shall not be allowed to say one thing at a time and the
opposite of it at a later time. Therefore when a person makes others believe
one thing in a proceeding, he cannot deny it at a later stage.
Different types of estoppels
When a consented matter is settled in
a competent court, the parties are precluded from re-agitating the matter
afresh by taking a fresh stand. This is called estoppels by record or res judicata.
A person who stated something in a
deed cannot deny it and assert something else. This is called estoppels by
deed.
A person who claims as a tenant cannot
deny later that the landlord had no title at the time of the tenant’s entry by
a licence into the tenancy in question.
Similarly, the acceptor of a bill of
exchange cannot say that the drawer had no authority to draw the bill or endorse
it.
Competency of a witness
In general, all persons are legally
competent to give evidence. But in the case of a child or a lunatic person the court
will conduct a precursor test to identify whether the witness has competency to
give evidence. The preliminary enquiry is called voire dire test. In this test, the judge will put some general questions
to the individual so as to test the witness’s competency.
Compelling a witness to provide evidence
Any person is competent enough to
testify as a witness unless he/she suffers from problems like inability to
understand the questions being so young or quite old in age, or unsoundness of
mind etc.
Any competent witness can be compelled
by the court to answer any question put to him. However a competent witness cannot
be compelled to answer some questions which are privileged. For example a
husband and wife are generally competent witnesses. But they cannot be asked to
disclose the communications in a matrimonial relation between them, which are
privileged, except in suits or proceedings between spouses in a marriage. No communication
of whatsoever nature made between them shall be compelled to be disclosed
without consent of the concerned party in any other kind of suit or proceeding.
The privilege exists even after divorce.
Similarly, a judge cannot be compelled
to answer any question regarding anything which came to his knowledge as a judge,
without an order of a superior court to which he is subordinate. But he can be
questioned about something he witnessed while he was acting as a judge.
Ban on disclosing official records
No officer is allowed to give evidence
regarding unpublished official records relating to any affairs of the State,
without obtaining permission of the Head of the Department. An officer shall not
be compelled to disclose any communication made to him in official confidence,
if he considers such disclosure would go against public interest.
A magistrate or officer shall not be
compelled to answer the source of his information regarding the commission of
any offence. Similarly, a revenue
officer should not be asked to disclose the source of information regarding the
offence against public revenue.
Professional communications between
the lawyers and the clients is insulated from disclosure. But any communication
pertaining to any illegal action between them is not at all precluded from
disclosure. Information on any crime committed by the legal counsel during his
engagement as an advocate is also not protected.
Examination of witnesses
The party on whom the burden of proof
lies should begin examination of witnesses by calling his witnesses - this is
called Examination-in-Chief.
Then, the opposite party should examine
the witness - this is called Cross Examination.
Thereafter, the party who called him
for Examination-in-Chief can re-examine the witness on answers given in Cross Examination.
Examination-in-Chief
In Examination-in-Chief, a witness may
be asked questions relating to relevant facts and facts in issue. Leading
questions are not allowed to be asked in Examination-in-Chief. Questions that
are irrelevant can also be asked if they are useful in corroborating the
testimony of the witness.
When the witness gives in answer any
fact including a relevant fact, he can be questioned as to any circumstance
which occurred around such time or place of occurrence of the fact. This is
permitted only when the court is of the opinion that such circumstances would help
in corroborating the testimony of the witness to the fact in issue. However, a statement of witness made to a police
officer shall not be used for such corroboration.
No leading question is allowed in Examination-in-Chief
if the other party objects to it. But it can be asked when the court permits
it. The court usually permits leading questions in matters of introductory
nature or of already proved facts. But in re-examination, no leading question
is allowed.
A party calling a witness can cross
examine him when the witness turns hostile. A witness can be allowed to refresh
his memory by looking at the records made by him at the time of the transaction
in question. The other party should be shown the record if they demand.
Cross Examination
Cross Examination is the most fruitful
test to discover the truth. But relevant facts alone must be enquired into in
the process.
In cross examination, a witness can be
asked questions regarding his previous statements in writing, by showing or
without showing the record. The scope of cross examination is limited generally
to relevant facts alone, but some other facts may also be asked to test his
credibility.
Harassing the witness
The court can direct the witness not
to answer any question asked by the counsel exclusively to harass him or injure
his character. The court can forbid any question which is needlessly offensive,
even if it is a proper one.
However the credibility of any witness
can be impeached by proving that the witness is bribed or his statement is
inconsistent with the former.
Re-examination
The purpose of re-examination is to
afford the party an opportunity of explaining the inconsistencies made in the
cross examination. If a new matter is asked in re-examination the adverse party
has a right to cross examine him on that particular point.
Judge’s power to ask questions
At any stage of the proceeding, the
judge has the power to ask any question on relevant or irrelevant facts to the
party about anything, in any form so as to obtain proof of any relevant fact.
He can also order the production of any document or thing. The parties can
neither object nor cross examine the witness, on such questions. However, the
judge cannot compel a party to answer a particular question or produce a
particular document which he refuses to answer or produce, as it is a
privileged one.
A trial judge is not a mute or blind
spectator, nor is he a dynamic functionary.
He asks questions so as to get evidence in a detached and dispassionate
manner with the object of ascertaining truth of the disputed matter. It is an
extraordinary power, but the judge should not usurp the power of a counsel.
Every trial is a voyage in search of truth. If prosecution fails to do its duty
the trial court should be vigilant enough to put such questions to discharge
its duty.
No criminal action on witness
No criminal action can be taken on any
witness for any answer he gave in a witness deposition, except for the offence
of giving false evidence. Therefore, a witness cannot be excused from answering
any relevant question fearing that he will be incriminated for telling anything
as part of witness examination.
A person, who is not a party to suit,
cannot be compelled to produce any document that would criminate him unless he
has agreed to produce them.
Improper admission and rejection of evidence
A court of appeal or revision should
not disturb a decision of the lower court on the sole ground that there was
improper admission or rejection of proper evidence at the trial stage, if there
are sufficient other independent materials to prove the decision in the
judgment. That means, improper admission or rejection of evidence alone is not
a sufficient ground to allow a new trial or reversal of any judgment.
Conclusion
The law of evidence plays a great role
in administration of justice. For that it is essential to provide reliable,
relevant and admissible evidence to establish the substantive rights of the
contesting parties in a court of law. The law makes the job of providing
evidence foolproof.
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